Judges Serving on Community Criminal Justice Boards

ISSUE

Answer: Yes, but the judge should not vote nor actively participate in any deliberations relating to the placement, diversion, revocation, or alteration of probation of any offender appearing before the board or before the court upon which such judge sits, nor should the judge vote or participate in any deliberations relating to the financial well being of any state, federal, or locally funded program which would give the appearance of compromising his or her impartiality.

DISCUSSION

This issue revisits a question of judicial conduct first addressed by the Judicial Council of Virginia in July, 1987, and again in July, 1995. By memorandum of July 6, 1987, based upon a report from the Judicial Conduct Committee of Council, the Judicial Council concluded that it was inappropriate for judges to serve on either Alcohol Safety Action Program (ASAP) or Community Diversion Incentives (CDI) boards:

"Council believes it is questionable whether membership on such boards constitutes a violation of the Canons of Judicial Conduct. Council thinks it is clear, however, that the presence of judges on such boards may create an appearance of partiality and damage the neutral image judges should always strive to maintain."

The report of the Judicial Conduct Committee upon which the Council took its action felt that serving on such boards would be improper for appearance of partiality or impropriety, but specifically stated:

"It should be pointed out that no committee member felt that membership on such board would constitute a violation of the Canons of Judicial Conduct."

Effective July 1, 1995, the CDI Act was replaced by the Community Criminal Justice Board, Virginia Code § 53.1-183. The statute required that the Board include judges from each of the trial courts. A position memo of May 30, 1995 addressed to the Judicial Conduct Committee of the Judicial Council distinguished between the old CDI Act and the new Comprehensive Community Correction Act for Local Responsible Offenders and the new Pretrial Services Act posed:

"As such, DCJS feels that judicial participation would be supported by Canon 4A and C "activities to improve the law, the legal system and the administration of justice"" ...

* * *

"We do not want prior history with ASAP and CDI programs to influence the current decisions of the Judicial Conduct Committee related to judicial participation on the newly established Community Criminal Justice Boards."

And finally, DCJS, in its position paper concluded :

"We will work diligently within the current Code of Virginia, to assist the judiciary in avoiding any appearance of partiality while at the same time facilitating the essential participation of the courts in helping to design and set policy for an effective and responsive system of justice in the Commonwealth."

In July, 1995, the Judicial Conduct Committee of the Council considered DCJS position paper and the ethical issues raised by Virginia Code § 53.1-183, and recommended to Council that judges appointed should serve, but not vote or actively participate in its deliberations.

By memo of July 10, 1995, the Judicial Council advised all judges that:

"Because the statute requires that judges participate on the Board, the Council recommends that judges who are appointed to the Boards accept appointment, serve, and provide the benefit of their experience and advice, but not vote on matters coming before the Board."

The Council, as did the Judicial Conduct Committee, urged that future sessions of the General Assembly would consider clarifying the role of judicial members consistent with the Canons of Judicial Conduct.

These opinions relied upon the Canons of Judicial Conduct for the State of Virginia adopted in 1973 as later amended. Canon 2A and B and the Commentary under the 1973 Canons remains relatively unchanged in the 1999 Canons with regard to this specific issue. On the other hand, Canon 4 has been substantially revised, especially in the Commentary, to encourage judges to contribute to the improvement of the law, the legal system, and the administration of justice. See Canon 4B and its Commentary.

Canon 4C(3) provides in part:

(3) A judge may serve as an officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice or of an educational, religious, charitable, fraternal or civic organization not conducted for profit, subject to the following limitations and the other requirements of this Code.

(a) A judge shall not serve as an officer, director, trustee or non-legal advisor of a governmental, civic, or charitable organization if it is likely that the organization:

(i) will be engaged in proceedings that would ordinarily come before the judge, or

(ii) will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.

(b) A judge as an officer, director, trustee or non-legal advisor, or as a member or otherwise:

(i) may assist such an organization in planning fund raising and may participate in the management and investment of the organization's funds, but shall not personally participate in the solicitation of funds, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority;

(ii) may make recommendations to public and private fund granting organizations on projects and programs concerning the law, the legal system or the administration of justice so long as one organization is not favored over another;

A balance of Canon 2 and Canon 4 together with Virginia Code § 53.1-183 then brings to the fore a dilemma quoted from a Utah Ethics Advisory Opinion 97-4 (August 28, 1997) noting the admittedly circular language of the provision.

"The practice is ethical if it is legal, and unethical if illegal. The committee's responsibility, however, is to give opinions on "the ethical propriety of professional or personal conduct," not the legal propriety, Rule 3-103(3)(A)(I), Utah Code of Judicial Administration (emphasis added)."

The General Assembly has chosen to place judges on the board.* The Judicial Council has opined that participation is permissible if restricted. The Committee believes that in any event, participation on a Community Criminal Justice Board is not an ethical violation if the judge does not vote nor participate in the deliberations set forth above.

All opinions shall be advisory only, and no opinion shall be binding on the Judicial Inquiry and Review Commission or the Supreme Court in the exercise of its judicial discipline responsibilities. However, the Judicial Inquiry and Review Commission and the Supreme Court may in their discretion consider compliance with an advisory opinion by the requesting individual to be evidence of a good faith effort to comply with the Canons of Judicial Conduct provided that compliance with an opinion issued to one judge shall not be considered evidence of good faith of another judge unless the underlying facts are substantially the same. Order of the Supreme Court of Virginia entered January 5, 1999.

* It is not within the charge of the committee and we therefore do not express an opinion as to whether a legislative mandate for CCJS participation interferes with the independence of the judiciary or the separation of the powers of the branches of government